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Publication Date: May 9, 1997
Related article: Copyright Protection in Cyberspace

Taming the Wild, Wild Web

By Sue Mellen

The Internet is sometimes likened to the Wild West. The vast territory, with its "anything goes" culture, has yet to be tamed by the rule of law. Among the dangers of this new frontier, for both individuals and corporations, are defamation and harassment.

Take the case of Jayne Hitchcock of Crofton, Md., who recently filed a $10 million lawsuit that many people hope will set a precedent.

In early 1996, Hitchcock, an author and teaching assistant, answered an e-mail advertisement from the Woodside Literary Agency of New York. In its response, Woodside asked Hitchcock for a $75 reading fee and additional payments before it would represent her.

Those up-front fees raised Hitchcock's suspicion: Legitimate agents generally earn their money only after selling an author's work. So Hitchcock, through postings to Internet newsgroups, began to warn other writers about a possible scam. Though she was not the only writer to publicly question Woodside's tactics, the company, she claims, targeted her for retaliation, defaming her in its ads and subjecting her to a barrage of electronic assaults.

Among the incidents cited in Hitchcock's legal complaint:

  • E-mail accounts used by Hitchcock; her literary agent, Red Stone Literary Services; and her employer, the University of Maryland, were flooded with messages, a practice commonly known as "mail bombing."

  • Inflammatory messages were posted to Usenet newsgroups under Hitchcock's name.

  • A sexually oriented posting made under Hitchcock's name included her address and telephone number. This led to a series of unusual phone calls, unsolicited magazine subscriptions, and at least one suspicious package (which turned out to contain incense).

Though Hitchcock contacted local police and the FBI, it was unclear how the author could press charges because no actual threat had been made against her. It would also prove difficult to track down her tormentors, who had altered their e-mail account information to conceal their identity. It took a volunteer "posse" of Hitchcock's online friends to decipher enough information in the bogus message headers to connect names to the postings.

Hitchcock's complaint, filed in January in U.S. District Court in New York, names as defendants the Woodside Literary Agency, its alleged associates, and all of the "John Does" and "Richard Roes" believed to be connected to the company. The case is being watched by many Internet users in the hopes a decision will result in direct protections under the law.

Of course, the kind of harassment seen in the Hitchcock case is not limited to individuals. Businesses, too, are vulnerable to e-mail bombs, forged messages and other online attacks, often with little recourse under the law. In one recent case, a company called Cubby, Inc. sued CompuServe for hosting defamatory messages about the firm. CompuServe attorneys argued that, unlike a publisher, the online service has no control over messages posted through its service. Rather, they said the service was like a bookstore or library, entities that contain, but do not control, printed material. CompuServe won the case.

Molly H. Sherden, an attorney with Boston's Peabody and Arnold Associates who has practiced in the area of intellectual property law for 18 years, offers a few suggestions for protecting against and coping with Web-based defamation:

  • Before choosing an Internet service provider, contact each provider to determine how much editorial control they offer. Controls may not offer perfect protection, but they do serve as deterrents to offenders.

  • If someone has published harmful, untrue statements about you or your company on the Internet and represented them as fact, you might demand a retraction and an apology or try to refute the message with a posting of your own.

  • Let your ISP know about any defamatory statements. The provider has a clear interest in cleaning up its territory.

  • Lawsuits are emotionally taxing and often expensive. Consider a suit only as a last resort.

"Anytime you are out in front of a lot of people like you are on the Internet, you are going to attract attention and open yourself up to defamation. Unfortunately, it goes with the territory," Sherden says.

Sue Mellen writes from Tyngsboro, Mass.

Related article: Copyright Protection in Cyberspace

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